166 Mass. 481 | Mass. | 1896
The offer was made on Saturday, December 2, 1893, and the withdrawal on the following Monday. Before making the offer, the defendant sought and had two or three interviews with the plaintiff for the purpose of selling the property to him. The defendant shortly before had been in a state of mental depression, due to an accident which occurred some years before and to attacks of dyspepsia; sometimes he was very much depressed, at other times excited; sometimes he was in a dazed and absent minded condition, and at other times very despondent. On the Saturday mentioned the parties came to
The offer was to sell at any time within ten days a block oí" uncompleted tenement houses, to finish them, and to guarantee them free from all lien or encumbrance, except a mortgage for ten thousand dollars, and, further, to give a good bond in the penal sum of twenty thousand dollars for the performance of the defendant’s agreements. The defendant could not furnish such a bond.
While the defendant when he made the offer understood its contents and was mentally responsible, and no fraud was practised upon him, the bargain was a hard one in the inadequacy of the price, and was beyond his power to carry out. The plaintiff shows no reason why he would not be fully compensated by damages in an action at law.
The defendant contends that the inadequacy of the price and
The defendant contends that, because he could not have compelled the plaintiff to buy before the acceptance of December 8, there is a want of mutuality which should defeat the bill. We enforce specifically contracts assented to by both parties, and further acted upon by the plaintiff, even when he has given only a verbal assent, and but for the offer in his bill could not be held to perform on his own part. Old Colony Railroad v. Evans, 6 Gray, 25, 33. Dresel v. Jordan, 104 Mass. 407, 412. Slater v. Smith, 117 Mass. 96. Mansfield v. Hodgdon, 147 Mass. 304. Whether we should specifically enforce a contract upon which the plaintiff has not acted except to give a mere assent, which would not enable the defendant to enforce the contract against him, it is not necessary to discuss. See Putnam v. Grace, 161 Mass. 237, 247. In the present case, because the offer was under seal, it was an irrevocable covenant, conditional upon acceptance within ten days, and the written acceptance within that time made it a mutual contract which the plaintiff can enforce. Mansfield v. Hodgdon, ubi supra. See also Clark, Con. 47; Lawson, Con. § 12; Pomeroy, Spec. Perf. § 169. The plaintiff might have assented to the withdrawal, and the offer would have been at an end. Ballou v. Billings, 136 Mass. 307, 309. But he was not bound to assent, and could
In this view of the case, it is unnecessary to consider whether there was a waiver of the withdrawal.
The result is that the plaintiff may have such specific performance as is now possible. The terms of the decree will be settled in the Superior Court. So ordered.